Jersey Matrimonial Case Summary- Reasons For Declaring The Marriage Void

• Law Firm: Carey Olsen
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Author: Ms Victoria Cure
• Published date: 30 January 2023

Advocate Lauren Glynn, Counsel in Carey Olsen (Jersey) LLP's family team, represented the Petitioner, C (via the Viscount in her capacity as Guardian Ad Litum), in the case of C v D [2022] JRC205; the first case before the Royal Court of Jersey to consider whether a marriage is void ab initio or simply voidable in circumstances in which one of the parties lacked mental capacity at the time of the marriage.

Case summary: C v D [2022] JRC205

The case involved an application by C for a declaration that her marriage to D was void ab initio. D, the Respondent, argued that the Court could not make a finding of nullity in the circumstances of the case.

Background

C and D married in October 2017 at the Office of the Superintendent Registrar in St Helier. C had a history of mental health difficulties and had received significant support and interventions from Adult Social Services.

Whilst the relevant statute did not expressly address the issue of capacity at the time of the marriage, concerns were raised as to C and D's capacity and a number of meetings took place between staff at the Registry Office and the couple. The conclusion reached at the time was that the couple did have capacity to marry. The evidence of the Superintendent Registrar was that C appeared to understand the nature of her application to marry D; indeed, she was said to be enthusiastic.

In October 2019, the Minister for Health and Social Services issued an application for an order under the Capacity and Self Determination (Jersey) Law 2016, seeking the Court's determination in respect of a number of matters pertaining to C, including whether she should have full time supervised care. A significant restriction of liberty order was made, and the Royal Court also determined that C lacked capacity to consent to sexual intercourse.

Following the above-noted orders D instigated the divorce process, but later instructed his advocate that he no longer wanted to divorce C. D's divorce petition was therefore withdrawn by consent and C's nullity petition was issued.

Issues

Two questions fell to be considered by the Court in respect of C's nullity petition:

1. Did C have mental capacity to enter into...